Interview with Rod Morgan

Clare Jerrom: Congratulations on your
appointment. The YJB has made significant improvements to the
system for juveniles over the last five years, but what do you
think will be the main challenges for you in your new role?

Rod Morgan: I think we are going to be fairly
preoccupied with aspects of custody because that really determines
so much else. You’ll probably be aware that of the money that
the YJB receives from the Home Office, the majority of it has
currently to be spent on custodial provision. If we are going to
reduce the resort to custodial provision, what we have got to do is
invest more money in alternatives and to demonstrate that they work
and to make the judiciary confident that they can be used with
confidence and that the public is reassured by all of that.

And yet our capacity to invest more in the alternatives is very
limited – so our room for manoeuvre is very limited. Ideally, you
would be doing research, experimentation. If you were working in
the private sector business you would be spending a lot of
‘r and d’ in the areas you intended to develop and in
fact our capacity to do that is quite limited.

It’s true that the proportionate use of custody has
diminished and that the number of juveniles in custody is lower
today than when the YJB was set up. But it’s still quite high
and the numbers of very young juveniles is still quite high. Both
the government and the opposition have made it plain they are going
to keep a tight control over Home Office expenditure and we are
going to have to cope with cuts and thus our room for manoeuvre is
limited. That’s one key problem area that we are going to
have to think about very hard and try and make sure that what we
spend in custody represents really good quality and value for
money.

CJ How do you see the future of the secure
estate? Do you envisage a move towards STCs and away from custody
if children have to be in a secure establishment?

RM I don’t know enough about it yet. I am
a great believer in not saying things until I think I understand
all of the issues. I am conscious that we have got a trade off
between three categories of local authority provision, the Prison
Service and STCs.

I’ve spent in my past career quite a lot of time in
prisons, including YOI’s, so I feel I have got a feel for
that and I am familiar with most of the establishments, and
although I shall make some visits I think I know a bit about
that.

But I don’t know about STCs or local authority provision.
I’m very conscious that they cost very different amounts and
I’m going to make some early visits there and discuss very
closely with my colleagues so that I understand those issues better
than I do today.

But yes it’s going to be very important that we spend the
money wisely and that the quality of what is delivered for what we
spend is very high. But precisely what the balance should be both
geographically and within those three sectors is something
I’m going to have to address very carefully.
CJ But the main priority would be to get numbers in
custody down as much as possible?

RM Yes, everyone says custody should be a last
resort, but the position at which different practitioners or
decision makers or observers fix their last resort is slightly
different.

But it should be a last resort. Very good work is done in some
institutions and I unequivocally agree that there are some young
people whose lives are so anarchic, whose problems are so great,
who are causing such damage they have got to be locked up, or
detained or secured in a place outside the community.

But I’m also clear that if you want to achieve certain
things, custodial establishments are not the ideal environment
within which to do it. So the question is the degree to which we
can persuade the courts with confidence that they can use intensive
alternatives and that means presenting them with sound evidence
that the alternatives work, safeguard the public, address the
problems and so on and so forth.

Then we need to explain to them in great detail both nationally
and locally and I’m a great believer that we have to do a
good job at talking effectively to the judiciary. I think the YJB
has done a good job in that regard. If I can make a cross-reference
to my present job as chief inspector of probation, frankly the YJB
has done a much better job than the probation service. It’s
invested more effort in it and it’s clearly been effective
and that tradition has got to continue.

CJ Do you think it’s a tough task
changing the way magistrates give out certain sentences?

RM I was a magistrate for over 20 years and
chaired a youth court so I see this issue from both sides of the
fence.

The magistrates’ courts have got a difficult task to do.
They want to make decisions with confidence. They have got to have
good information about what the consequences of their decisions are
and I think historically the penal services haven’t done as
much arguably as they might do to ensure the magistracy is
well-informed.

But it’s not something that can be done exclusively by
either the centre or the locality it’s got to be done by
both. There are big differences in the quality of what’s
being delivered by YOTs, for example, of which there are 155 in
England and Wales. We are beginning to know more about that, not
just from the performance data that are returned to the Youth
Justice Board on a regular basis, but as you may or may not know
this inspectorate is now leading a multi-inspectorate inspection
programme of YOTs and our first report is due to be published next
week on Halton and Warrington. But within the next few weeks and
months there will be a steady stream of YOT inspections reports on
a 5-6 year cycle. The plan is that they should all be
inspected.

Where there are distinct shortcomings, the plan is that we will
revisit and do a follow-up, but if there is an acute problem
according to the inspectorate team we will return to them. And that
will start to flesh out, in a more qualitative way, the sort of
operational data that are regularly returned by YOTs – it
starts to look between the spaces to look at the quality of
what’s delivered.

What we are doing in the inspection programme and I will carry
this emphasis in my job as chair of the YJB is we are looking at
what is actually being delivered to individual kids. So what we are
looking at is a cross-section of cases and we are looking at the
electronic and paper trace that the file has left, what has been
done, what is the analysis of the risks, what interventions have
been delivered proportionate and appropriate to those risks and to
the extent that we’re able is it having any impact. That
ultimately is the test is it not? What’s your analysis of the
risk? What is it appropriate to try and change? Is it all
proportionate to the size of the risk and does it have an impact.
Ultimately that’s the question that the courts want to know
if you are seeking to persuade them to do something different to
what they are doing. What they want to know is whether the public
are being safeguarded and is behaviour going to get changed?

You’ve got to do that locally. Local Youth Offending Teams
have got to build the confidence of their local courts as well as
we at the centre through research, reports and the publication of
overall analyses have got to be able to persuade the judiciary that
they can have confidence in the alternatives we are creating.

CJ So you are joining at a time when there are
quite a few large changes within children’s services and
youth justice. How is the Youth Justice Board going to sit in
relation to the new National Offender Management Service.

RM No-one really knows what the National
Offender Management Service is going to look like yet. If you read
the Carter report and the Home Office response to it, the Carter
report provides a detailed analysis of sentencing trends and argues
we have got one or two things a bit wrong. I spent time with Pat
Carter personally and I fervently support his conclusions. He has
come to conclusions that I have been trying to argue fairly
consistently in the last year. We are being more punitive,
proportionately we are using more intensive interventions in a way
that 10-15 years ago we wouldn’t have done, at a time when
recorded crime is falling.

The consequence is that we have got the biggest prison
population we have ever had and probation case loads are
overloaded, silted up with quite low risk of re-offending and quite
low risk of harm offenders. So what I’m saying is we are
using very scarce and expensive resources for quite a lot of
offenders who quite frankly don’t need that level of
intervention.

There has been a disastrous decline in the use of financial
penalties, this is not particularly relevant to juveniles but it is
for adults, so quite a few people are on probation caseloads who
are quite low-risk, who 10-12 years ago would have been fined. That
doesn’t make sense because we should be doing more intensive
work with persistent offenders of which there are a large number.
Here there are parallels between juveniles and the adult sector. We
have got to do a lot more effective and intensive work with those
kids in real trouble and who are persistent offenders and the same
when it comes to adults.

My estimate is that something like two thirds of all offenders
currently doing community service in the adult sector could
probably be fined, which would free up probation to do other
work.

But quite a lot of hopes are invested in the sentencing
guidelines council. Carter considers that to be a very important
development and I do also. I invest quite a lot of hope in it. But
if you look at the experience of other jurisdictions who have
established sentencing commissions, quite a lot of them
haven’t worked and those that have worked, have taken several
years to develop to get up and running and to make an impact. So
even if the sentencing guidelines council is a great success, which
I hope, it’s very unlikely that it will have much impact upon
sentencing trends for several years. So we have got a problem in
the interim.

CJ There have also been suggestions that youth
justice should move under the remit of the Department for Education
ad Skills alongside the other children’s services. What do
you think about the proposal?

RM Much of what I’ve said about Noms
could be said about the new children’s services within the
DfES – we don’t know what it’s going to look like yet.
There’s a lot of talk about silo thinking in Whitehall and we
must have better integration, better inter-departmental,
inter-service working and break down the silos. But it needs to be
remembered that silos are created to develop effective services to
a target group. I think of a silo in terms of a grain silo –
it’s a strong structure which preserves a product.

I share the ambition in the White paper to develop better
integrated children’s services. I’m passionately in
favour of that. However what’s got to be remembered is that
children in trouble with the law are an extremely vulnerable and
problematic group about which there is frequently scandal and there
are frequent media panics and we’ve got to ensure that that
target group is well catered for and that appropriate services are
provided to it.

So for the foreseeable future I think we have got to have a
separate agency and until we know about the shape, I think
it’s appropriate it remains with the Home Office. Because
ultimately these children are having to be dealt with by the youth
justice system because of a breach of the law. And justice is
fundamental here. We know from past experience and in other
countries that what is sometimes delivered in the name of the
welfare of individuals may not necessarily be just.

There’s a careful balance to be struck here and I think at
the moment the arrangements properly lie with the Home Office and
should continue to do so.
But, I’m having a meeting with Margaret Hodge early next
week. I shall regard it as absolutely essential that I establish
good relations with her and her senior civil servants. And what we
have got to do at the centre and YOTs have got to do locally is to
ensure that they work closely with the existing and emergent
children’s services to ensure that children in trouble are
gaining access to all of the key services – education,
health, mental health – which is vital for their welfare and
in the name of the justice that they get.

But the problem for some comprehensive services is that
particularly problematic and awkward groups sometimes slip to the
periphery and I think it’s appropriate and necessary that we
have a separate structure and that it is currently linked to the
Home Office. So I shall regard it as vital that I establish and the
YJB maintains close partnership arrangements with the Home Office
on one side and the DfES on the other.

CJ You mentioned earlier wanting to reduce the
juvenile population as much as possible. Do you think the new
Intensive Supervision and Surveillance Order will help to reduce
custody or is there the danger that it will be used for people who
would receive a community sentence anyway?

RM There’s always that danger and
that’s why we need to develop careful standards so that the
relationship between the appropriateness of intervention and risk
is fairly well understood and followed in the designed pattern. And
why we need to have these confident relationships with the
judiciary because we have to reduce the risk of sentencing drift
which is partly what the Carter report is all about. There’s
been a huge amount of sentencing drift and it’s been the
objective of policy-makers for the last half century to introduce
more intensive, robust, punitive, to community interventions on the
grounds that it will displace custody. The fact is we now have in
England and Wales more alternatives to custody than any other
jurisdiction that I am familiar with, both in adult and juvenile
sector and we have had signal lack of success about reducing the
use of custody. So we have to do it very carefully which is why the
sentencing guidelines council is very important as well.

You have got to have a very clear, conception in your mind as a
sentencer and as a YOT worker or a probation officer as to what the
relationship is between the particular level of offending and
offending career and the appropriateness of a particular
intervention and this is one of the issues we have to think
about.
So the risk you identify is a real one. We’ve got to
introduce it carefully, and we’ve got to monitor its use
carefully and be robust in talking about the results of our
monitoring.

CJ Is there a danger that measures in
legislation such as the antisocial behaviour act could lead to an
increase in custody for example through breaches of antisocial
behaviour orders?

RM Yes!

CJ What can YJB do if anything to tackle
that?

RM To talk honestly on the base of evidence
about all of that because although an antisocial behaviour order is
not a criminal order in the straightforward sense and the civil law
test applies, the balance of probabilities, once you’re in
breach of an asbo, the penalties are quite severe. There is quite a
lot of evidence of asbos being used for what could otherwise be
dealt with as quite serious offences so I have yet to see very good
evidence as to the characteristics of children getting asbos and
the circumstances they are being awarded. I think we need really
good evidence of this. There is someone at Cambridge at the
Cambridge Institute of Criminology doing some work on this and I
will look with great interest at the results because at the moment
I haven’t seen very much about it.

I will confess to you when asbos were introduced I wrote several
articles with fellow academics raising concerns about them

CJ I understand from YJB figures there are
about 200 young people each month that are being assessed by Yots
as vulnerable but because of a lack of places they are being placed
in YOIs. Do you think that’s acceptable particularly given
tragedies such as Joseph Scholes who was assessed as vulnerable and
who should have been placed in a LASCH or STC but because of a
shortage of places ended up in Stoke Heath YOI where he
subsequently took his own life. Do you think it’s acceptable
that these people deemed vulnerable are being placed in YOIs and
what is the YJB going to do to tackle this?

RM This frankly comes back to where we started
I can’t answer the question. It’s quite clear there are
some conditions in some YOIs that are acceptable and possibly some
that remain unacceptable, you can’t doubt that. I read the
reports of inspections of prisons and will continue to read them
carefully and it’s important we continue to get those
reports.

One of the things we need to think about is that where we are
purchasing custodial places as that’s a key function of the
board that we are assured that the children and young people placed
within them are safe and safeguarded and their best interests are
considered and to the extent that that’s not the case then we
have to be looking by all means possible to eliminate those places
and create alternatives. That can be done either by improving the
quality in those places or by finding alternatives and in the youth
justice system this dreadful word ‘contestability’
– it’s what we used to call market testing and the
reason why we think it’s being used is because you could have
different providers not necessarily by going full bore to create a
market. Different Yots can deliver services, different probation
areas can conceivably provide different services, there could be
specialisation deliver of labour. Contestability as a concept I
wholly approve of and in the case of the youth justice system and
custodial provision, it’s something we need to foster.

What we need to ensure is that we have different providers to
whom we can resort depending on the quality of what’s
delivered. That’s the ultimate test is what is being done,
appropriate, safe healthy, caring constructive and so on. So I
can’t answer your question in terms of particulars but
whenever unacceptable conditions appear we have got to ruthlessly
ensure they are eliminated.

CJ Do you think NHS now taking over the
provision of healthcare in prisons will improve matters
particularly where children are assessed as vulnerable because of
say mental health problems?

RM Let me say I wholly approve of the principle,
I’ve written quite a lot of books and many more articles
about prisons and one of the principles that I have always
subscribed to is that services within custodial establishments
should generally speaking be part of the services delivered in the
rest of the community. So if you are going to provide a literacy
service, there are people who are illiterate in the community,
there are many more people proportionately illiterate in custodial
establishments so the proper service to deliver is a literacy
service that is professional, knows how to do the job. There is no
reason why they shouldn’t operate in custodial establishments
as well as in the community. Likewise education, health etc the
best people to do the job should be doing it and custodial
establishments shouldn’t be enclaves where a lower or a
different standard is applied because you can’t attract the
best personnel to work in that setting.

CJ Do you think that the use of special cells
should be banned?

RM I don’t know what you mean by special
cells.

CJ They are in 19 different YOIs and children
who are disruptive on the wing can be taken there to calm them
down. However, there has been a suggestion recently that they are
being used inappropriately ie children are being left there too
long. Do you think there is a place for these cells or should they
be abolished?

RM I was a member of a prison board of visitors
for many years, I’ve written extensively about prisons and
I’m always acutely aware of this issue both for people who
are committing offences in prisons and people who are out of
control or who are quite often suffering mental stress and are
mentally ill.

I’ve always argued there has to be very sparing use of
isolation and things like stripping or using strip cells or
whatever we call them and the names have changed over the
years.

I don’t know about the extent yet, I’m not clued up
about the use of special cells currently in YOIs yet. All I can say
is if there is any evidence of excessive resort, if there is
evidence of prolonged use of isolation or strip cells or stripping
procedures then it’s something that would concern me because
I think there are usually other ways of handling other things.

So I will look at the evidence but having not started the job
yet I’m not familiar with the detail of that yet. If
you’re telling me there has been evidence of excessive resort
and critical reports it’s something I shall be concerned
about. It’s vital.

CJ I don’t suppose you know at this stage
how long you will be in the job?

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